Lum v. Review Panel of the Council of the Alberta Dental Association and College, 2015 ABQB 12

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 12, 2014
• Citations: 2015 ABQB 12;(2015), 604 A.R. 117 (QB)

Lum v. Dental Assoc. (2015), 604 A.R. 117 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.091

Patrick Lum (applicant) v. Review Panel of the Council of the Alberta Dental Association and College (respondent)

(1303 01313; 2015 ABQB 12)

Indexed As: Lum v. Review Panel of the Council of the Alberta Dental Association and College

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

January 7, 2015.

Summary:

Lum had been registered to practice dentistry in British Columbia since 1999. In 2011, he applied for registration with the Alberta Dental Association and College (ADAC). The Registrar of the ADAC denied the application. A Review Panel dismissed Lum's appeal. Lum applied for judicial review.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 3219.1

Judicial review - General - Error of fact - The Registrar of the Alberta Dental Association and College (ADAC) denied Lum's application for registration with the ADAC due to a lack of evidence respecting Lum's good character and reputation - A Review Panel dismissed Lum's appeal - Lum applied for judicial review, arguing that the Registrar made factual errors and that it was unreasonable for the Review Panel to find that the Registrar had not erred - The Alberta Court of Queen's Bench dismissed the application - A fact finding was only unreasonable when it was completely unsupported by any evidence on which it could have been found - Weighing evidence was part of the function of the decision-maker of first instance, not the reviewing court - The Registrar's finding had a basis in the evidence and was one of the reasonable choices that was available to him - Likewise, the Review Panel's finding that the Registrar's decision was reasonable was one of the reasonable outcomes available to them - See paragraphs 115 to 130.

Administrative Law - Topic 9105

Boards and tribunals - Judicial review - Question of law - [See first Medicine - Topic 7290 ].

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Registrar of the Alberta Dental Association and College (ADAC) denied Lum's application for registration with the ADAC due to a lack of evidence respecting Lum's good character and reputation - A Review Panel, applying the standard of reasonableness to the Registrar's decision, dismissed Lum's appeal - Lum applied for judicial review, arguing that the Review Panel should have reviewed the Registrar's decision on a correctness standard - The Alberta Court of Queen's Bench disagreed - The Registrar was the gatekeeper of the dental profession - He had to make fact findings and exercise discretionary powers as to the nature and volume of information regarding good character and reputation that he required - There was no appeal from the Registrar's decision to admit someone to the profession; only rejected applicants had that right - All the Review Panel did respecting registration appeals was to review the Registrar's decisions to refuse registration - Its role was to sit on appeal from the Registrar, not carry out the function of the Registrar - These factors pointed to the reasonableness standard - See paragraphs 34 to 43.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Registrar of the Alberta Dental Association and College (ADAC) denied Lum's application for registration with the ADAC due to a lack of evidence respecting Lum's good character and reputation - A Review Panel, applying the standard of reasonableness to the Registrar's decision, dismissed Lum's appeal - Lum applied for judicial review, arguing that the Review Panel should have reviewed the Registrar's decision on a correctness standard because the issue of "good character and reputation" was a question of central importance to the legal system - He submitted that defining "good character and reputation" would be of precedential value to various professions in Alberta - The Alberta Court of Queen's Bench disagreed - The issue of determining "good character and reputation" was a question of mixed law and fact - The real challenge was defining the word "good", as it involved looking at the facts and making a judgment call - Creating an exhaustive list of factors that constituted good character would result in an inflexible and arbitrary approach that lessened the ability of the Registrar to exercise discretion and judgment - Thus, the reasonableness standard applied to this issue when the Review Panel was reviewing the Registrar's decision and also when the court was reviewing the Review Panel's decision - See paragraphs 49 to 72 and 90.

Medicine - Topic 7282

Dentists - Regulation - Legislation - [See second Medicine - Topic 7284 ].

Medicine - Topic 7284

Dentists - Regulation - Practice of dentistry - Lum had been registered to practice dentistry with the College of Dental Surgeons of British Columbia (CDSBC) since 1999 - In 2011, he applied for registration with the Alberta Dental Association and College (ADAC) - The CDSBC provided the Registrar of the ADAC with a report summarizing 22 complaints made against Lum between 2001 and 2011 - None of the complaints had proceeded past the informal resolution process, such that there had never been a citation or adverse finding against Lum - The Registrar denied Lum's application - Although Lum had provided four reference letters, this was insufficient to establish his good character and reputation when weighed against the number and nature of the complaints - The Review Panel dismissed Lum's appeal - Lum applied for judicial review, arguing that the Review Panel did not give appropriate weight to his reference letters - The Alberta Court of Queen's Bench dismissed Lum's application - Reweighing evidence was not the role of the Review Panel - The Registrar was in the best position to understand the significance of the number of complaints, and to weigh the nature of the complaints in the context of assessing Lum's character and reputation - It was not unreasonable for the Registrar to place greater weight on the evidence that was contrary to the reference letters - See paragraphs 131 to 134.

Medicine - Topic 7284

Dentists - Regulation - Practice of dentistry - Lum was registered to practice dentistry in British Columbia - He applied for registration with the Alberta Dental Association and College (ADAC) - The Registrar of the ADAC denied Lum's application due to a lack of evidence respecting Lum's good character and reputation as required by the Health Professions Act (HPA) and the Dentists Profession Regulation (DPR) - A Review Panel dismissed Lum's appeal - Lum applied for judicial review, arguing that the Review Panel incorrectly applied the Trade, Investment and Labour Mobility Agreement (TILMA) between Alberta and British Columbia - He submitted that TILMA did not permit consideration of character and reputation - The Alberta Court of Queen's Bench dismissed the application - TILMA post-dated the HPA and DPR - Absent legislative authorization or implementation, a subsequent treaty or agreement could not have the effect of amending prior legislation - If the existing legislation could be interpreted in a manner consistent with the treaty or agreement, that was "preferred" but not mandatory - In any event, a reasonable interpretation of TILMA did not lead to the conclusion that different and lesser standards of character and reputation were required of applicants from B.C. - It contemplated that there would still be room for governing bodies to consider issues relating to public safety and consumer protection - See paragraphs 146 to 162.

Medicine - Topic 7285

Dentists - Regulation - Powers of governing body - [See first Administrative Law - Topic 9122 and first Medicine - Topic 7284 ].

Medicine - Topic 7290

Dentists - Regulation - Judicial review (incl. standard of review) - Lum was registered to practice dentistry in British Columbia - He applied for registration with the Alberta Dental Association and College (ADAC) - The Registrar of the ADAC denied Lum's application due to a lack of evidence respecting Lum's good character and reputation as required by the Health Professions Act (HPA) and the Dentists Profession Regulation (DPR) - A Review Panel dismissed Lum's appeal - Lum applied for judicial review, arguing that the Review Panel incorrectly applied the Trade, Investment and Labour Mobility Agreement (TILMA) between Alberta and British Columbia - The Alberta Court of Queen's Bench held that the issue as to whether and to what extent the Review Panel had to interpret and apply the HPA and DPR in the context of TILMA was an extricable question of law - It was not within the experience or expertise of the Review Panel as it involved the potential application of legislation other than the Review Panel's home statute and a determination as to how these potentially conflicting obligations were to be reconciled or ignored - It was also a question of general importance to the legal system, as TILMA was of general application to all regulated trades and professions - Thus, this issue was to be reviewed on the correctness standard - See paragraphs 91 to 96.

Medicine - Topic 7290

Dentists - Regulation - Judicial review (incl. standard of review) - [See second Administrative Law - Topic 9122 ].

Treaties - Topic 1606

Operation and effect - Domestic or internal consequences - [See second Medicine - Topic 7284 ].

Cases Noticed:

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Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, appld. [para. 22].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 24].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 24].

Nelson v. Alberta Association of Registered Nurses, [2005] A.R. Uned. 128; 2005 ABCA 229, refd to. [para. 28].

College of Physical Therapists (Alta.) v. J.H., [2010] A.R. Uned. 450; 2010 ABCA 303, refd to. [para. 28].

Bishop v. College of Optometrists (Alta.) (2009), 454 A.R. 197; 455 W.A.C. 197; 2009 ABCA 175, refd to. [para. 28].

Pelech v. Law Enforcement Review Board (Alta.) et al. (2010), 493 A.R. 335; 502 W.A.C. 335; 2010 ABCA 400, refd to. [para. 29].

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Barbosa v. Health Professions Appeal and Review Board et al. (2012), 292 O.A.C. 176; 2012 ONSC 1761 (Div. Ct.), refd to. [para. 33].

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Patterson et al. v. Dental Association and College (Alta.) et al. (2004), 372 A.R. 129; 2004 ABQB 742, refd to. [para. 41].

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Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 46].

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Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 60].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 61].

Hutton v. Law Society of Newfoundland (1992), 102 Nfld. & P.E.I.R. 34; 323 A.P.R. 34; 1992 CanLII 2757 (N.L.T.D.), refd to. [para. 70].

Zakhary v. College of Physicians and Surgeons (Alta.) (2012), 548 A.R. 260; 2012 ABQB 623, refd to. [para. 76].

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Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 100].

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Furst v. Alberta Motor Vehicle Industry Council et al. (2009), 455 A.R. 381; 2009 ABQB 122, refd to. [para. 113].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101, refd to. [para. 120].

Northwest Child and Family Services Agency (Man.) v. L.A.C. and A.S.C. (1988), 55 Man.R.(2d) 189 (C.A.), refd to. [para. 132].

Canada v. Van Bergen (2000), 261 A.R. 387; 225 W.A.C. 387; 2000 ABCA 216, refd to. [para. 149].

R. v. Partak (2001), 160 C.C.C.(3d) 553 (Ont. Sup. Ct.), refd to. [para. 150].

R. v. Walters (N.W.) (2011), 529 A.R. 110; 2011 ABQB 593, refd to. [para. 150].

Sihota v. Edmonton (City) et al. (2013), 544 A.R. 164; 567 W.A.C. 164; 2013 ABCA 125, refd to. [para. 172].

Harris v. Minister of National Revenue (2001), 214 F.T.R. 1; 2001 FCT 1408, refd to. [para. 173].

Counsel:

Craig D. Bavis (Victory Square Law Office LLP), for Dr. Patrick Lum;

James Casey, Q.C., and Chelsey L. Bailey (Field LLP), for the Alberta Dental Association & College;

David Jardine (Shores Jardine LLP), for the Review Panel of Alberta Dental Association & College.

This application for judicial review was heard on September 12, 2014, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 7, 2015.